Obstructionism of Judicial Nominations Continues Despite Large Number of Vacancies

December 3, 2012

by Jeremy Leaming

The Senate may soon vote on one of the 19 judicial nominations that were left pending before members recessed in August for electioneering. Even if it does take a bit of time to confirm a judicial nominee, the Senate still has a long way to go to fill a large number of vacanices on the federal bench, which were caused primarily by Senate Republicans' obstructionism.

Some continue to write that the Obama administration has failed to put forth enough nominations for the federal bench. But that’s merely reciting a right-wing or Sen. Chuck Grassley (R-Iowa) talking point. It doesn’t add much anymore to the conversation. The Brookings Institution's Russell Wheeler noted earlier this year in a progress report on judicial nominations that while Obama, at that point in his presidency had made fewer district court nominations than Presidents Bill Clinton and George W. Bush, he had also made more circuit court nominations.

The only point that matters is that the federal bench has a high number of vacancies – more than 80, and many of them are judicial emergencies – not because of the number of nominations made, but the number of nominations stalled. Moreover, as an unnamed White House aide told The Huffington Post, it doesn’t make a difference as to when the nominations are made, as long as the Senate continues to obstruct. (Yes, The Post piece cited also includes the lame line about Obama not nominating enough folks for the federal bench.)

The 19 pending nominees have already been run through the Senate Judiciary Committee, and are ready for an up-or-down vote on the Senate floor. Regardless of the battle to reach a budget deal to avoid a so-called fiscal cliff, consideration of these nominees would not take much floor time if the Senate were properly functioning.

“There is no justification for holding up final Senate action on the 19 judicial nominations that have been approved by the Senate Judiciary Committee and are pending on the Senate Executive Calendar,” said Senate Judiciary Chairman Patrick Leahy (D-Vt.) in a Nov. 30 statement. “President Obama has consistently reached across the aisle, consulted with home state senators from both parties and appointed moderate, well-qualified judicial nominees. It is time for the obstruction to end and for the Senate to complete action on these nominees so that they may serve the American people with further delay. Delay for delay’s sake is wrong and should end.”

Senator Leahy (pictured) has been a consistent critic of the obstructionism, largely fueled by Senate Minority Leader Mitch McConnell (R-K.Y.). Senate Majority Leader Harry Reid (D-Nev.) has become so frustrated by the obstructionism (used not only to scuttle nominations, but also bills intended to address pay equity and immigration reform) that he’s on board with altering the filibuster to make it more onerous to use. Earlier this year, Reid said he supported a plan advanced by Sens. Tom Udall (D-N.M.) and Jeff Merkley (D-Ore.) changing the way the filibuster is currently employed by Republicans to obstruct work in the Senate.

The New York Times in a November editorial urged Reid to advance the plan, saying the filibuster “was never intended to routinely require a 60-vote supermajority on virtually every issue the Senate takes up. Yet that’s how Republicans have used it in the last six years, to a far greater extent than Democrats ever did when they were in the minority.”

Gary Hart, a former U.S. senator, argues that the Senate rules “should not be altered casually or expediently.” But the current Republican Senate minority has abused the filibuster. “It cannot demand respect for the rules of the Senate,” Hart continued, “when it is has abused those rules systematically, cynically and destructively.”          

McConnell of course is loudly claiming that the filibuster must not be changed. But McConnell is also not serious about wanting to work with administration, or he has shown no tangible evidence that he is. Instead he remains as committed as ever to fighting everything the administration does, even its attempt to fill rising vacancies on the federal bench.

So maybe this outlandish obstructionism will result in changes to the way the filibuster is employed. If it does, it’s not because too few nominees might have been made early in the Obama administration. The change will come because of Republicans’ insistence on blocking everything Obama. (The only serious argument, by the way, to be had over Obama’s selections to the federal bench is whether too few liberals have been included in the mix.)

[image via leahy.senate.gov]